South Carolina General Assembly
116th Session, 2005-2006

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S. 577

STATUS INFORMATION

General Bill
Sponsors: Senators Campsen, McConnell, Gregory, Martin, Verdin, Cleary, Peeler, Richardson, Ryberg, O'Dell and Bryant
Document Path: l:\s-jud\bills\campsen\jud0062.gec.doc

Introduced in the Senate on March 3, 2005
Currently residing in the Senate Committee on Judiciary

Summary: Medical Claims Arbitration

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
    3/3/2005  Senate  Introduced and read first time SJ-10
    3/3/2005  Senate  Referred to Committee on Judiciary SJ-10
   3/10/2005  Senate  Referred to Subcommittee: Martin (ch), Gregory, Elliott, 
                        Hawkins, Ritchie

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

3/3/2005

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND TITLE 15, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CIVIL REMEDIES AND PROCEDURES, BY ADDING CHAPTER 32, SO AS TO PROVIDE THAT IN PERSONAL INJURY ACTIONS AGAINST A HEALTH CARE PROVIDER OR HEALTH CARE INSTITUTION ARISING OUT OF EMERGENCY CARE OR OBSTETRICAL CARE, THE CLAIMANT MAY NOT RECOVER FOR TREATMENT OR LACK OF TREATMENT AGAINST THE PROVIDER OR THE INSTITUTION UNLESS THE CLAIMANT PROVES NEGLIGENCE BY CLEAR AND CONVINCING EVIDENCE; BY AMENDING TITLE 15 OF THE 1976 CODE, RELATING TO CIVIL REMEDIES AND PROCEDURES, BY ADDING CHAPTER 46, SO AS TO PERMIT A HEALTH CARE PROVIDER OR HEALTH CARE INSTITUTION TO ENTER INTO WRITTEN AGREEMENTS WITH PATIENTS TO SUBMIT TO MEDIATION IF A DISPUTE ARISES AND A PATIENT BRINGS A PERSONAL INJURY ACTION FOR ALLEGED MEDICAL MALPRACTICE, UNLESS PROHIBITED BY FEDERAL LAW, TO REQUIRE A PROVIDER OR INSTITUTION WHO OPTS TO PARTICIPATE IN MEDIATION TO PUBLISH NOTICE OF ITS DECISION ON SIGNS AT THE PROVIDER'S OFFICE OR AT THE INSTITUTION, AND TO PUBLISH NOTICE IN A NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY WHERE THE PROVIDER OFFICE OR INSTITUTION IS LOCATED FOR A PERIOD OF FIVE CONSECUTIVE DAYS, TO PLACE NOTIFICATION OF THE PROVIDER'S OR INSTITUTION'S DECISION TO PARTICIPATE IN MEDIATION IN WRITING ON THE FIRST PAGE OF ANY CONTRACT WITH A PATIENT AND ON THE SIGNATURE PAGE IMMEDIATELY BEFORE THE PATIENT'S SIGNATURE LINE, TO PROVIDE THAT A MINOR MAY NOT DISAFFIRM A CONTRACT SIGNED BY HIS PARENTS, LEGAL GUARDIAN, OR OTHER REPRESENTATIVE, TO PROVIDE THAT MEDIATION CONTRACTS ARE NOT CONTRACTS OF ADHESION, NOR UNCONSCIONABLE OR OTHERWISE IMPROPER, TO PROVIDE THAT A HEALTHCARE PROVIDER IS UNDER NO OBLIGATION TO RENDER MEDICAL SERVICES TO ANYONE WHO REFUSES TO SIGN A MEDIATION CONTRACT, UNLESS PROHIBITED BY FEDERAL LAW, TO PROVIDE THAT IN EMERGENCIES WHERE A PATIENT IS UNABLE TO EXECUTE AN AGREEMENT, THE PATIENT'S CONSENT IS IMPLIED, EXCEPT AS PROHIBITED BY FEDERAL LAW, TO PROVIDE THAT MEDIATION CONTRACTS ARE ENFORCEABLE AGAINST ALL INSTITUTIONS, THE PATIENT, AND ALL PROVIDERS WHO ARE CONSULTED DURING THE TREATMENT OF THE PATIENT, TO REQUIRE THAT ALL CONSULTING PROVIDERS BE PROVIDED WRITTEN NOTICE OR NOTICE BY PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY WHERE THE OFFICE OR FACILITY IS LOCATED, TO PROVIDE THAT ALL MEDIATION CONDUCTED PURSUANT TO THIS CHAPTER SHALL BE IN ACCORDANCE WITH THE ALTERNATIVE DISPUTE RESOLUTION RULES, AND TO PROVIDE THAT A PROVIDER OR INSTITUTION MAY CHOOSE TO PARTICIPATE IN EITHER THE SOUTH CAROLINA MEDICAL CLAIMS MEDIATION ACT, THE SOUTH CAROLINA MEDICAL ARBITRATION ACT, OR BOTH, OR NEITHER; BY AMENDING TITLE 15 OF THE 1976 CODE, RELATING TO CIVIL REMEDIES AND PROCEDURES, BY ADDING CHAPTER 47, TO ENACT THE "SOUTH CAROLINA MEDICAL CLAIMS ARBITRATION ACT", SO AS TO PERMIT A HEALTH CARE PROVIDER OR HEALTH CARE INSTITUTION TO ENTER INTO WRITTEN AGREEMENTS WITH PATIENTS TO SUBMIT TO BINDING ARBITRATION IF A DISPUTE ARISES AND A PATIENT BRINGS A PERSONAL INJURY ACTION FOR ALLEGED MEDICAL MALPRACTICE, UNLESS PROHIBITED BY FEDERAL LAW, TO REQUIRE A PROVIDER OR INSTITUTION WHO OPTS TO PARTICIPATE IN BINDING ARBITRATION TO PUBLISH NOTICE OF ITS DECISION ON SIGNS AT THE PROVIDER'S OFFICE OR AT THE INSTITUTION, AND TO PUBLISH NOTICE IN A NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY WHERE THE PROVIDER OFFICE OR INSTITUTION IS LOCATED FOR A PERIOD OF FIVE CONSECUTIVE DAYS, TO PLACE NOTIFICATION OF THE PROVIDER'S OR INSTITUTION'S DECISION TO PARTICIPATE IN ARBITRATION IN WRITING ON THE FIRST PAGE OF ANY CONTRACT WITH A PATIENT AND ON THE SIGNATURE PAGE IMMEDIATELY BEFORE THE PATIENT'S SIGNATURE LINE, TO PROVIDE THAT A MINOR MAY NOT DISAFFIRM A CONTRACT SIGNED BY HIS PARENTS, LEGAL GUARDIAN, OR OTHER REPRESENTATIVE, TO PROVIDE THAT BINDING ARBITRATION CONTRACTS ARE NOT CONTRACTS OF ADHESION, NOR UNCONSCIONABLE OR OTHERWISE IMPROPER, TO PROVIDE THAT A HEALTHCARE PROVIDER IS UNDER NO OBLIGATION TO RENDER MEDICAL SERVICES TO ANYONE WHO REFUSES TO SIGN A BINDING ARBITRATION CONTRACT, UNLESS PROHIBITED BY FEDERAL LAW, TO PROVIDE THAT IN EMERGENCIES WHERE A PATIENT IS UNABLE TO EXECUTE AN AGREEMENT, THE PATIENT'S CONSENT IS IMPLIED, EXCEPT AS PROHIBITED BY FEDERAL LAW, TO PROVIDE THAT BINDING ARBITRATION CONTRACTS ARE ENFORCEABLE AGAINST ALL INSTITUTIONS, THE PATIENT, AND ALL PROVIDERS WHO ARE CONSULTED DURING THE TREATMENT OF THE PATIENT, TO REQUIRE THAT ALL CONSULTING PROVIDERS BE PROVIDED WRITTEN NOTICE OR NOTICE BY PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY WHERE THE OFFICE OR FACILITY IS LOCATED, TO PROVIDE THAT ALL ARBITRATION CONDUCTED PURSUANT TO THIS CHAPTER SHALL BE IN ACCORDANCE WITH THE UNIFORM ARBITRATION ACT, AND TO PROVIDE THAT A PROVIDER OR INSTITUTION MAY CHOOSE TO PARTICIPATE IN EITHER THE SOUTH CAROLINA MEDICAL CLAIMS MEDIATION ACT, THE SOUTH CAROLINA MEDICAL ARBITRATION ACT, OR BOTH, OR NEITHER; TO AMEND SECTION 15-48-10 OF THE 1976 CODE, RELATING TO CIVIL REMEDIES AND PROCEDURES, BY ADDING THE 'SOUTH CAROLINA MEDICAL CLAIMS ARBITRATION ACT'; AND TO AMEND TITLE 19 OF THE 1976 CODE, RELATING TO EVIDENCE, BY ADDING SECTION 19-1-190, SO AS TO PROVIDE THAT IN ANY CLAIM OR CIVIL ACTION BROUGHT BY OR ON BEHALF OF A PATIENT EXPERIENCING AN UNANTICIPATED OUTCOME OF MEDICAL CARE, ANY STATEMENTS MADE BY A HEALTH CARE PROVIDER OR HIS EMPLOYEE OR AGENT, OR BY A HEALTH CARE INSTITUTION TO A PATIENT EXPRESSING BENEVOLENCE, REGRET, APOLOGY, SYMPATHY, COMMISERATION, CONDOLENCE, COMPASSION, MISTAKE, ERROR OR A GENERAL SENSE OF BENEVOLENCE ARE INADMISSIBLE AS EVIDENCE AND SHALL NOT CONSTITUTE AN ADMISSION OF LIABILITY OR AN ADMISSION AGAINST INTEREST, AND TO PERMIT A DEFENDANT IN A MEDICAL MALPRACTICE ACTION TO WAIVE THE INADMISSIBILITY OF THE STATEMENTS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Title 15 of the 1976 Code is amended by adding:

"CHAPTER 32

Article 1

Standard of Proof in Cases Involving Emergency Care

Section 15-32-10.    In a personal injury action against a health care provider or health care institution, as defined in Section 15-47-20, that arises out of the provision of emergency medical care in a hospital emergency department or obstetrical unit, including diagnosis, as provided for in Title 42, United States Code Section 1395dd only, the person bringing the personal injury action may recover for the treatment or lack of treatment by the health care provider or health care institution only if the claimant proves, by clear and convincing evidence, that the health care provider or health care institution departed from the accepted standards of medical care or health care and failed to do what a reasonably prudent health care provider or health care institution would do in the same or similar circumstances."

SECTION    2.    Title 15 of the 1976 Code is amended by adding:

"CHAPTER 46

South Carolina Medical Claims Mediation Act

Section 15-46-10.    This chapter may be cited as the `South Carolina Medical Claims Mediation Act.'

Section 15-46-20.    As used in this chapter:

(1)    'Health care institution' an ambulatory surgical facility, a hospital, an institutional general infirmary, a nursing home, and a renal dialysis facility.

(2)    'Health care provider' means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity.

(3)    'Hospital' means a licensed facility with an organized medical staff to maintain and operate organized facilities and services to accommodate two or more nonrelated persons for the diagnosis, treatment, and care of such persons over a period exceeding twenty-four hours and provides medical and surgical care of acute illness, injury, or infirmity and may provide obstetrical care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina. This term includes a hospital that provides specialized service for one type of care, such as tuberculosis, maternity, and orthopedics,

(4)    'Institutional general infirmary' is a licensed facility which is established within the jurisdiction of a larger nonmedical institution and which maintains and operates organized facilities and services to accommodate two or more nonrelated students, residents or inmates with illness, injury, or infirmity for a period exceeding twenty-four hours for the diagnosis, treatment, and care of such persons and which provides medical, surgical, and professional nursing care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina.

(5)    'Medical malpractice' means doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances.

(6)    'Personal injury' means injuries to the person including, but not limited to, bodily injuries, mental distress or suffering, loss of wages, loss of services, loss of consortium, and other noneconomic damages and actual economic damages.

(7)    'Personal injury action' means an action for personal injury, including a wrongful death action pursuant to Sections 15-51-10 through 15-51-60 and a survival action pursuant to Section 15-5-90.

Section 15-46-30.    (A)    Unless prohibited by Title 42, Section 1395dd of the United States Code, or other federal law, as a condition of providing medical services to a patient, a healthcare provider or a health care institution may enter into a written agreement with a patient to submit to mediation if a dispute arises and the patient seeks to bring a personal injury action for alleged medical malpractice against the healthcare provider or the health care institution.

(B)    Notice that a health care provider or health care institution has opted to participate in mediation under this chapter shall be indicated by a conspicuous posting in the provider or institution's office or facility such to alert patients or potential patients of the health care provider's or health care institution's intent to render medical services subject to the South Carolina Medical Claims Mediation Act. Such notice shall consist of:

(1)    A plaque or sign with the following language: `THIS FACILITY PARTICIPATES IN THE SOUTH CAROLINA MEDICAL CLAIMS MEDIATION ACT. ALL DISPUTES RELATED TO MEDICAL MALPRACTICE IN CONNECTION WITH MEDICAL SERVICES RENDERED, EXCEPT AS PROHIBITED BY 42 U.S.C. Section 1395dd, OR OTHER FEDERAL LAW, ARE SUBJECT TO MEDIATION IN ACCORDANCE WITH SOUTH CAROLINA LAW.';

(2)    placement of the sign or plaque in a conspicuous location or locations, as required, to effect such notice; and

(3)    publication for a period of five consecutive days in a newspaper of general circulation in the county where the office or facility is located indicating that the provider or institution participates in the South Carolina Medical Claims Mediation Act.

(C)    Notice that a dispute regarding medical services is subject to mediation pursuant to this chapter shall be typed in underlined capital letters, or rubber-stamped prominently, on the first page of the contract and unless such notice is displayed thereon the contract shall not be subject to mediation.

(D)    Immediately before the signature line provided for the individual contracting for the medical services, there shall appear the following statement in at least 10-point bold red type: `NOTICE: EXCEPT AS PROHIBITED BY 42 U.S.C. Section 1395dd, OR OTHER FEDERAL LAW, BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE MEDIATED.'

(E)    Where the contract is one for medical services to a minor patient, it shall not be subject to disaffirmance if signed by the minor patient's parent, legal guardian, or other representative.

(F)    Such a contract is not a contract of adhesion, nor unconscionable nor otherwise improper, where it complies with subsections (C) and (D) of this section.

(G)    If a patient does not enter into a contract pursuant to subsection (A), the healthcare provider is under no obligation to render services to the patient, unless it is prohibited from doing so by Title 42, Section 1395dd, or other federal law.

(H)    In the case of medical emergencies where the patient is unable to execute an agreement pursuant to subsection (A), the patient is deemed to have impliedly consented to such an agreement; provided, that the health care provider or health care institute has complied with subsection (B)(3), except as prohibited by Title 42, Section 1395dd, or other federal law.

(I)    A contract entered into pursuant to subsection (A) is valid, enforceable, and irrevocable against the healthcare institution, the patient, and all health care providers involved in the treatment of the patient, including health care providers who are consulted by other health care providers during the treatment of the patient. Notice to consulting health care providers must be provided in advance of any consultation, in accordance with subsection (J) of this section.

(J)    Consulting health care providers must be provided notice that the health care provider or health care institution has opted to participate in mediation under this chapter either in writing, sent to the consulting health care provider's mailing address, or by publication for a period of five consecutive days in a newspaper of general circulation in the county where the office or facility is located indicating that the provider or institution participates in the South Carolina Medical Claims Mediation Act.

(K)    Any dispute subject to mediation shall be conducted in accordance with the South Carolina Circuit Court Alternative Dispute Resolution Rules.

(L)    A health care provider or health care institution may enter into a written agreement with a patient to submit to mediation pursuant to this Act, or it may enter into a written agreement with a patient to submit to binding arbitration pursuant to the South Carolina Medical Claims Arbitration Act, found in Chapter 47 of this title. A healthcare provider or health care institution may participate in either mediation or binding arbitration, or both programs."

SECTION    3.    Title 15 of the 1976 Code is amended by adding:

"CHAPTER 47

South Carolina Medical Claims Arbitration Act

Section 15-47-10.    This chapter may be cited as the `South Carolina Medical Claims Arbitration Act.'

Section 15-47-20.    As used in this chapter:

(1)    'Health care institution' an ambulatory surgical facility, a hospital, an institutional general infirmary, a nursing home, and a renal dialysis facility.

(2)    'Health care provider' means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity.

(3)    'Hospital' means a licensed facility with an organized medical staff to maintain and operate organized facilities and services to accommodate two or more nonrelated persons for the diagnosis, treatment and care of such persons over a period exceeding twenty-four hours and provides medical and surgical care of acute illness, injury, or infirmity and may provide obstetrical care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina. This term includes a hospital that provides specialized service for one type of care, such as tuberculosis, maternity and orthopedics.

(4)    'Institutional general infirmary' is a licensed facility which is established within the jurisdiction of a larger nonmedical institution and which maintains and operates organized facilities and services to accommodate two or more nonrelated students, residents or inmates with illness, injury, or infirmity for a period exceeding twenty-four hours for the diagnosis, treatment and care of such persons and which provides medical, surgical, and professional nursing care, and in which all diagnoses, treatment, or care are administered by or performed under the direction of persons currently licensed to practice medicine and surgery in the State of South Carolina.

(5)    'Medical malpractice' means doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances.

(6)    'Personal injury' means injuries to the person including, but not limited to, bodily injuries, mental distress or suffering, loss of wages, loss of services, loss of consortium, and other noneconomic damages and actual economic damages.

(7)    'Personal injury action' means an action for personal injury, including a wrongful death action pursuant to Sections 15-51-10 through 15-51-60 and a survival action pursuant to Section 15-5-90.

Section 15-47-30.    (A)    Unless prohibited by Title 42, Section 1395dd of the United States Code, or other federal law, as a condition of providing medical services to a patient, a healthcare provider or a health care institution may enter into a written agreement with a patient to submit to binding arbitration if a dispute arises and the patient seeks to bring a personal injury action for alleged medical malpractice against the healthcare provider or the health care institution.

(B)    Notice that a health care provider or health care institution has opted to participate in arbitration under this chapter shall be indicated by a conspicuous posting in the provider or institution's office or facility such to alert patients or potential patients of the health care provider's or health care institution's intent to render medical services subject to the South Carolina Medical Claims Arbitration Act. Such notice shall consist of:

(1)    A plaque or sign with the following language: `THIS FACILITY PARTICIPATES IN THE SOUTH CAROLINA MEDICAL CLAIMS ARBITRATION ACT. ALL DISPUTES RELATED TO MEDICAL MALPRACTICE IN CONNECTION WITH MEDICAL SERVICES RENDERED, EXCEPT AS PROHIBITED BY 42 U.S.C. Section 1395dd, OR OTHER FEDERAL LAW, ARE SUBJECT TO MANDATORY BINDING ARBITRATION IN ACCORDANCE WITH SOUTH CAROLINA LAW.';

(2)    placement of the sign or plaque in a conspicuous location or locations, as required, to effect such notice; and

(3)    publication for a period of five consecutive days in a newspaper of general circulation in the county where the office or facility is located indicating that the provider or institution participates in the South Carolina Medical Claims Arbitration Act.

(C)    Notice that a dispute regarding medical services is subject to binding arbitration pursuant to this chapter shall be typed in underlined capital letters, or rubber-stamped prominently, on the first page of the contract and unless such notice is displayed thereon the contract shall not be subject to arbitration.

(D)    Immediately before the signature line provided for the individual contracting for the medical services, there shall appear the following statement in at least 10-point bold red type: `NOTICE: EXCEPT AS PROHIBITED BY 42 U.S.C. Section 1395dd, OR OTHER FEDERAL LAW, BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL, BINDING ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL.'

(E)    Where the contract is one for medical services to a minor patient, it shall not be subject to disaffirmance if signed by the minor patient's parent, legal guardian, or other representative.

(F)    Such a contract is not a contract of adhesion, nor unconscionable nor otherwise improper, where it complies with subsections (C) and (D) of this section.

(G)    If a patient does not enter into a contract pursuant to subsection (A), the healthcare provider is under no obligation to render services to the patient, unless it is prohibited from doing so by Title 42, Section 1395dd, or other federal law.

(H)    In the case of medical emergencies where the patient is unable to execute an agreement pursuant to subsection (A), the patient is deemed to have impliedly consented to such an agreement; provided, that the health care provider or health care institute has complied with subsection (B)(3), except as prohibited by Title 42, Section 1395dd, or other federal law.

(I)    A contract entered into pursuant to subsection (A) is valid, enforceable, irrevocable, and binding against the healthcare institution, the patient, and all health care providers involved in the treatment of the patient, including health care providers who are consulted by other health care providers during the treatment of the patient. Notice to consulting health care providers must be provided in advance of any consultation, in accordance with subsection (J) of this section.

(J)    Consulting health care providers must be provided notice that the health care provider or health care institution has opted to participate in arbitration under this chapter either in writing, sent to the consulting health care provider's mailing address, or by publication for a period of five consecutive days in a newspaper of general circulation in the county where the office or facility is located indicating that the provider or institution participates in the South Carolina Medical Claims Arbitration Act.

(K)    Any dispute subject to binding arbitration shall be conducted in accordance with the Uniform Arbitration Act in Chapter 48.

(L)    A health care provider or health care institution may enter into a written agreement with a patient to submit to binding arbitration pursuant to this Act, or it may enter into a written agreement with a patient to submit to mediation pursuant to the South Carolina Medical Claims Mediation Act, found in Chapter 46 of this title. A healthcare provider or health care institution may participate in either mediation or binding arbitration, or both programs."

SECTION    4.    Sections 15-48-10(b)(3) and (4) of the 1976 Code are amended to read:

"(3)    A pre-agreement entered into when the relationship of the contracting parties is such that of lawyer-client or doctor-patient and the term 'doctor' shall include all those persons licensed to practice medicine pursuant to Chapters 9, 15, 31, 37, 47, 51, 55, 67 and 69 of Title 40 of the 1976 Code, unless the claim is subject to arbitration under the 'South Carolina Medical Claims Arbitration Act', as provided for in Chapter 47, Title 15.

(4)    Any claim arising out of personal injury, based on contract or tort, or to any insured or beneficiary under any insurance policy or annuity contract, unless the claim is subject to arbitration under the 'South Carolina Medical Claims Arbitration Act', as provided for in Chapter 47, Title 15."

SECTION    5.    Chapter 1, Title 19 of the 1976 Code is amended by adding:

"Section 19-1-190.    (A)    This section may be cited as the 'South Carolina Unanticipated Medical Outcome Reconciliation Act.'

(B)    The General Assembly finds that conduct, statements, or activity constituting voluntary offers of assistance or expressions of benevolence, regret, mistake, error, sympathy, or apology between or among parties or potential parties to a civil action should be encouraged and should not be considered an admission of liability. The General Assembly further finds that such conduct, statements, or activity should be particularly encouraged between health care providers and patients experiencing an unanticipated outcome resulting from their medical care. Regulatory and accreditation agencies are in some instances requiring health care providers to discuss the outcomes of their medical care and treatment with their patients, including unanticipated outcomes, and studies have shown such discussions foster improved communications and respect between provider and patient, promote quicker recovery by the patient, and reduce the incidence of claims and lawsuits arising out of such unanticipated outcomes. The General Assembly, therefore, concludes certain steps should be taken to promote such conduct, statements, or activity by limiting their admissibility in civil actions.

(C)    As used in this section, the term:

(1)    `Health care institution' means an ambulatory surgical facility, a hospital, an institutional general infirmary, a nursing home, and a renal dialysis facility.

(2)    'Health care provider' means a physician, surgeon, osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor, optometrist, podiatrist, or similar category of licensed health care provider, including a health care practice, association, partnership, or other legal entity.

(3)    'Unanticipated outcome' means the outcome of a medical treatment or procedure, whether or not resulting from an intentional act, that differs from an expected or intended result of such medical treatment or procedure.

(D)    In any claim or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider, an employee or agent of a health care provider, or by a healthcare institution to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest.

(E) The defendant in a medical malpractice action may waive the inadmissibility of the statements defined in subsection (C)."

SECTION    6.    This act takes effect upon approval by the Governor.

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